T.B. v. L.R.M.

• Decision Date: 28 December 2001
• Citation: 786 A.2d 913
• Parties: T.B., Appellee, v. L.R.M., Appellant.
• Court: Pennsylvania Supreme Court

Page 913

786 A.2d 913

T.B., Appellee, v. L.R.M., Appellant.

Supreme Court of Pennsylvania.

Argued September 10, 2001.

December 28, 2001.

Nicholas Banda, Johnstown, for L.R.M.

Mary Elizabeth Solens Luce, Stuart Michael Wilder, Doylestown, for Debra Hein amicus curiae.

Roger Daniel McGill, Edensburg, Patricia M. Logue, for T.B.

Susan Frietsche, Philadelphia, Meredith L. Schalick, Tiffany Lynn Palmer, Seth F. Kreimer, for Support Center for Child Advocates and fifty-four other organizations amicus curiae.

Mary Catherine Roper, Susan Schleck Kleiner, Daniel James Anders, Philadelphia, Eric Paul Cheung, Megan L. Traversari, Haverford, Lawrence Evan Frankel, David Ford Abernethy, Philadelphia, Leslie Cooper, Matthew Coles, for American Civil Liberties Union and American Civil Liberties Union of Pennsylvania.

Before JOHN P. FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

This case involves the application of the doctrine of in loco parentis as a method of conferring standing on one seeking partial custody of a child for purposes of visitation. Because the evidence establishes that Appellee assumed a parental status and discharged parental duties with the consent of the biological parent, the lower courts properly held that Appellee possessed standing to seek visitation. Accordingly, we affirm.

The record establishes that Appellant and Appellee, both females, engaged in an exclusive, intimate relationship. The parties shared finances and expenses through a joint bank account and jointly purchased a home. The parties decided to have a child. They agreed that Appellant would be impregnated by donor sperm and that Appellee would choose the donor.¹ Appellee cared for Appellant during her pregnancy and attended childbirth classes with her. Appellee was the designated co-parent for purposes of being present in the operating room during the birth.

The child, A.M., was born on August 27, 1993. The parties lived together with the child, but did not enter into a formal parenting agreement. Appellant named Appellee as guardian of the child in her will.² Appellant and Appellee shared day-to-day child rearing responsibilities, including taking A.M. for medical check-ups and other appointments. A.M. referred to Appellee as "Aunt [T.]" and referred to Appellee's sisters as "aunts" as well. Appellee was active, yet deferential to Appellant in making parental decisions. Appellee either cared for A.M. during the day or took her to daycare. When A.M. fell ill, Appellee stayed home from work to care for her. Appellee had exclusive responsibility for A.M. when Appellant was away from home. The parties also took family vacations together with A.M.

In May of 1996, Appellant and Appellee purchased a new home. Shortly thereafter, Appellee left the home and engaged in a relationship with another woman. In August of 1996, the parties separated. Appellee visited A.M. on September 4, 1996. Thereafter, Appellant refused all visitation requests, telephone calls and Its for the child.

On October 3, 1996, Appellee filed a "Complaint for Shared Legal and Partial Custody and Visitation." Therein, she contended that she should be granted partial custody and visitation because she acted as A.M.'s parent for more than three years while residing with Appellant. Appellant filed preliminary objections to the complaint, contending that Appellee lacked standing to sue for visitation. On March 17, 1997, a hearing officer held a hearing on both standing and custody/visitation.³ Relying on J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314 (1996), the hearing officer concluded that Appellee had standing to seek custody/visitation pursuant to the doctrine of in loco parentis. The hearing officer also found that it would be in A.M.'s best interests to grant Appellee partial custody for purposes of visitation.

Appellant filed timely exceptions to the hearing officer's report.⁴ The common pleas court adopted the hearing officer's recommendations and granted Appellee one visitation period per month. The order explicitly recognized that the visitation arrangement is subject to continued review. On September 24, 1997, Appellant filed an appeal in Superior Court. She also filed a petition in the trial court for a stay pending appeal, which was denied. Appellant subsequently filed an application for a stay in Superior Court, which was granted on December 5, 1997, and remains in effect.

On the merits, the en banc Superior Court agreed that Appellee stood in loco parentis to A.M. and therefore had standing to seek visitation. It concluded, however, that the record did not provide an adequate basis for review of the trial court's decision that visitation was in A.M.'s best interests. Accordingly, it vacated the visitation order and remanded for a full hearing to determine whether visitation was in A.M.'s best interests.⁵

We granted allocatur solely to examine whether the lower courts properly applied the common law doctrine of in loco parentis as a method of conferring standing upon Appellee to seek partial custody of A.M. for purposes of visitation.

The scope of review applied by an appellate court to a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that is not supported by competent evidence. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845, 847 (1992). However, this broad scope of review does not vest an appellate court with the duty or privilege of making its own independent determination. An appellate court may not interfere with the trial court's factual conclusions unless they are unreasonable in view of the trial court's factual findings and thus represent an abuse of discretion. Id.

It is well-established that there is a stringent test for standing in third-party suits⁶ for visitation or partial custody due to the respect for the traditionally strong right of parents to raise their children as they see fit. R.M. v. Baxter, 565 Pa. 619, 777 A.2d 446, 450 (2001). The courts generally find standing in third-party visitation and custody cases only where the legislature specifically authorizes the cause of action. Id. A third party has been permitted to maintain an action for custody, however, where that party stands in loco parentis to the child. Gradwell v. Strausser, 610 A.2d at 1002.

In loco parentis is a legal status and proof of essential facts is required to support a conclusion that such a relationship exists. Kransky v. Glen. Alden. Coal Company, 354 Pa. 425, 47 A.2d 645, 646 (1946). Early cases referencing the doctrine of in loco parentis concerned entitlement to and compensation for children's services. See generally Logan v. Murray, 6 Serg. & Rawle 175 (Pa.1820). The status of in loco parentis has also been referenced in cases involving whether a child should be treated as the child of an in loco parent for life insurance purposes, Young v. Hippie, 273 Pa. 439, 117 A. 185 (1922), and for purposes of entitlement to workers' compensation benefits. Kransky. In recent years, however, the doctrine has been used almost exclusively in matters of child custody. Commonwealth v. Gerstner, 540 Pa. 116, 656 A.2d 108, 112 (1995).

The phrase "in loco parentis" refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas; first the assumption of a parental status, and, second, the discharge of parental duties. Id.; Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531, 533 (1968). The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879, 882 (1977). The third party in this type of relationship, however, can not place himself in loco parentis in defiance of the parents' wishes and the parent/child relationship. B.A. and A.A. v. E.E., 559 Pa. 545, 741 A.2d 1227, 1229 (1999); Gradwell v. Strausser, 610 A.2d at 1003.

Appellant first contends that our Court should abandon the doctrine of in loco parentis as a means of conferring standing in custody cases. She argues that where the biological parent is fit and opposes custody/visitation, the government should not interfere with the biological parent's wishes. Appellant also asserts that there is no statutory protection of a former partner's interest in the child of another and that Appellee does not fall within the zone of interest that the statute seeks to protect. She maintains that it is the role of the legislature, not the courts, to debate whether public policy dictates that such protection is warranted. Appellant relies on this Court's decision in Ken R. v. Arthur Z., 546 Pa. 49, 682 A.2d 1267 (1996), where we held that a sibling does not have standing to sue for visitation because the statutory scheme does not protect a sibling's interest in that regard.

Appellant's claims are not persuasive. Initially, it should be noted that Appellant did not argue in the lower courts that the well-established doctrine of in loco parentis should be abandoned. Rather, she argued that Appellee did not satisfy the requirements necessary for the assumption of the status. Thus, it is questionable whether the vitality of the in loco parentis doctrine is properly presented in this appeal. In any event, Appellant offers no persuasive reason why the facts of this particular case warrant such a far-reaching change in the common law — a change that could potentially affect the rights of stepparents, aunts, uncles or other family members who have raised children, but lack statutory protection of their interest in the child's visitation or custody.

As the Superior Court noted in J.A.L. v....